State v. Wereman , 52 State Rptr. 958 ( 1995 )

NO. 94-509
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAMON PATRICK WEREMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, State Appellate Defender,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Elizabeth L. Griffing, Assistant Attorney
General, Helena, Montana
Deborah Butler, Acting Jefferson County
Attorney, Boulder, Montana
Submitted on Briefs: June 29, 1995
Decided: September 14, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, DamOn Patrick Wereman, was charged by
information in the District Court of the Fifth Judicial District in
Jefferson County with bail jumping pursuant to § 45-7-308, MCA.
Following trial by jury, a guilty verdict was returned. Wereman
appeals from his conviction. We affirm the judgment of the
District Court.
The issues on appeal are:
1. Did the District Court err when it admitted evidence of
prior statements by Wereman's counsel to the effect that he had not
been able to locate his client?
2. Did the District Court err when it instructed the jury
that notice to counsel was considered notice to his client?
FACTUAL BACKGROUND
On August 12, 1985, Wereman was charged by information with
aggravated assault in the Fifth Judicial District Court in
Jefferson County. The District Court set bail at $2500 and ordered
Wereman to make his initial appearance on August 26, 1985.
Wereman's bail was posted, conditioned on his appearance in court,
and he was released from jail on August 13, 1985. Wereman failed
to appear on August 26, 1985, and the court rescheduled his initial
appearance for September 3, 1985. Again, Wereman failed to appear.
On September 9, 1985, Wereman's counsel appeared in the District
Court without his client and told the District Court that he had
unsuccessfully attempted to contact Wereman. Accordingly, the
District Court ordered that Wereman's bail be forfeited.
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On April 14, 1993, Wereman was arrested in Helena, based on
misdemeanor charges. He was then transferred to the Jefferson
County Jail in Boulder to await further prosection of the 1985
aggravated assault charge.
However, that charge was dismissed, and instead, Wereman was
charged with bail jumping in violation of § 45-7-308, MCA.
The trial of that charge commenced on May 4, 1994. During the
trial, over Wereman's objection, the State introduced a minute
entry from the September 9, 1985, hearing during which Wereman's
counsel told the District Court that he had attempted but failed to
contact Wereman concerning Wereman's initial appearance in the
aggravated assault case. Thereafter, the jury returned a guilty
verdict.
Wereman was sentenced to ten years in prison, with five years
suspended, for bail-jumping. The District Court also designated
Wereman a persistent felony offender and, as a result, sentenced
him to an additional five years in prison to be served
consecutively with the bail-jumping sentence. The court also
designated Wereman as a dangerous offender for purposes of parole.
Wereman appeals the judgment of the District Court.
ISSUE 1
Did the District Court err when it admitted evidence of prior
statements by Wereman's counsel to the effect that he had not been
able to locate his client?
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We review a district court's admission of evidence to
determine whether the district court abused its discretion in doing
so. &&‘v.Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380.
The district court has broad discretion to determine
whether or not evidence is relevant and admissible, and
absent a showing of an abuse of discretion, the trial
court's determination will not be overturned.
Passama , 863 P.2d at 380 (citing St&v. Crist (1992), 253 Mont. 442,
445, 833 P.2d 1052, 1054).
Furthermore, u [nlo cause shall be reversed by reason of any
error committed by the trial court against the appellant unless the
record shows that the error was prejudicial." Section 46-20-
701(1), MCA. "Any error, defect, irregularity, or variance which
does not affect substantial rights shall be disregarded." Section
46-20-701(2), MCA.
The District Court admitted a minute entry that indicated that
Wereman's counsel had informed the District Court that he had
"tried different ways in which to contact [Wereman] . . . but could
not find him . . .I' Wereman argues that admission of the minute
entry created a conflict of interest for his counsel, and
therefore, was a violation of his constitutionally guaranteed right
to effective assistance of counsel pursuant to the Sixth Amendment
of the United States Constitution and Article II, Section 24, of
the Montana Constitution.
The starting point for analyzing ineffective assistance claims
is Stricklandv. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674. In that case, the United States Supreme Court
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established a two-part test. First, the defendant must prove that
counsel's performance was deficient. Second, the defendant must
prove that the deficient performance prejudiced the defendant.
Strickland. 466 U.S. at 687.
In support of his contention that he did not receive effective
assistance of counsel, Wereman directs our attention to State v.
Christenson (1991), 250 Mont. 351, 820 P.2d 1303. In that decision,
we set out the two correlative rights established by United States
Supreme Court case law in relation to the Sixth Amendment's
guarantee of effective assistance of counsel. Those two rights
are: (1) the right to reasonably competent counsel (citing McMann
v.Richardson (1970), 397 U.S. 759, 770-71, 90 S. Ct. 1441, 1448-49,
25 L. Ed. 2d 763, 773; and (2) the right to counsel's undivided
loyalty (citing Woodv. Georgia (1981), 450 U.S. 261, 271-72, 101
S. Ct. 1097, 1103-04, 67 L. Ed. 2d 220, 230). We recognized in
Christenson that criminal defendants may raise different sorts of
ineffective assistance claims to which courts must,
correspondingly, apply different tests. For example, when a
criminal defendant raises issues relating to conflicts of interest,
as Wereman does here, we will apply the test the Supreme Court
established in Cuylerv. Sullivan (1980), 446 U.S. 335, 100 S. Ct. 1708,
64 L. Ed. 2d 333. In Cuyler, the Court held that ineffective
assistance by conflict of interest requires proof that: (1) counsel
actively represented conflicting interests; and (2) an actual
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conflict of interest adversely affected counsel's performance.
Cuyler , 446 U.S. at 350, 100 S. Ct. at 1719.
We have stated that we will presume prejudice if the defendant
can establish both prongs of the Cuylev test. Christenson, 820 P.Zd at
1306. The reason for this is that a presumption of prejudice is
warranted in such a circumstance because "the duty of loyalty,
'perhaps the most basic of counsel's duties,' is breached and 'it
is difficult to measure the precise effect on the defense of
representation corrupted by conflicting interests."' Christenson, 820
P.2d at 1306 (citing Stricklandv. Washington (1984), 466 U.S. 668, 692,
104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674, 696).
Wereman contends that admission of his counsel's remarks
effectively transformed his counsel into the State's key witness.
He also contends that once the District Court admitted the minute
entry, the court "placed counsel in an insoluble dilemma, for he
could not challenge the state's evidence when he was the source of
that evidence. . In short, counsel's statements were used
against his client, and he could not advocate on behalf of his
client."
Wereman relies on Uptainv.UnitedStates (5th Cir. 1982), 692 F.2d 8.
In that case, the defendant had been indicted for bail jumping.
During trial, the government called Uptain's counsel to testify
that Uptain had notice of the trial date. Uptain's counsel was the
only witness the government called to testify, with the exception
of a rebuttal witness. Counsel testified that he had sent two
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letters by certified mail to the defendant indicating when the
trial date was, but that the receipts evidencing their delivery had
never been returned to him. Uptain's counsel also testified that
he had spoken with the defendant over the telephone concerning the
trial date and, although he could not recall whether he had told
the defendant the date of trial, it was his normal procedure to do
so.
The Fifth Circuit Court of Appeals ruled that counsel's
testimony was "undeniably inherently prejudicial." The court
emphasized the fact that the government's only witness was the
defendant's counsel and that counsel could not have adequately
defended his client when to do so required that he minimize the
significance of his own testimony. In reaching its conclusion, the
court also emphasized that the defendant's only defense to the
bail-jumping charge was that he did not have either written or oral
notice of the trial date. Uptain , 692 F.2d at 10.
The facts in this case differ considerably from those in Uptain.
Here, the State presented several witnesses to establish the
elements of bail jumping; Wereman's counsel was not called as a
witness; notice was not an issue; and the minute entry at issue
would not have shown notice, even if it had been an issue. All the
minute entry did show was that Wereman's counsel did not know where
Wereman was on September 9, 1985. The fact that lack of notice was
not the reason for Wereman's failure to appear is evident from his
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own testimony. On direct examination, Wereman testified as
follows:
Q: (DEFENSE coumm) And did you show up for any
further court proceedings once you bailed out?
A: (WEREMAN) I'm not too sure. I don't think I did.
Q: Okay. And what was -- what was your intention at
that time, Pat? Did -- did you intend to run away, or
did you have some other idea? What was your -- what was
your thinking at that time?
A: It was pretty clear to me the case was going to be
thrown out. . So I just figured it was history.
Q: And how did you come to form that opinion?
A: Oh, just talking with different people and stuff.
Subsequently, after Wereman refused to answer questions during
cross-examination, the District Court asked Wereman if he had
failed to make his initial appearance, to which Wereman responded,
"It's pretty obvious."
Based on the above discussion, we conclude that admission of
the minute entry did not adversely affect counsel's ability to
defend Wereman in this case, and therefore, did not satisfy the
second prong of the Cuyler test to establish ineffective assistance
of counsel. Furthermore, even if the District Court had abused its
discretion by admission of the minute entry, we conclude, based on
a review of the evidence and issues presented, that the minute
entry was not prejudicial to the defendant, and therefore, does not
serve as a basis for reversal of the District Court's judgment.
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ISSUE 2
Did the District Court err when it instructed the jury that
notice to counsel was considered notice to his client?
We review jury instructions in criminal cases to determine
whether the instructions, "as a whole, fully and fairly instruct
the jury on the law applicable to the case." State v. Brandon ( 1994 ) ,
264 Mont. 231, 237, 870 P.2d 734, 737 (citing Statev.Lundblade (1981),
191 Mont. 526, 529, 625 P.2d 545, 548). The district court must
provide the jury with instructions for each issue or theory which
is supported by the record. Brandon, 870 P.2d at 737 (citing Statev.
Popescu (19891, 237 Mont. 493, 495, 774 P.2d 395, 396).
The District Court instructed the jury that 'I [nlotice to an
attorney of a court date is notice to the client and knowledge of
the attorney is knowledge of his client." Wereman contends that
this instruction relieved the State of proving every element of the
bail-jumping offense beyond a reasonable doubt and, in particular,
the mental-state element. In other words, Wereman contends that
the instruction imputed his counsel's notice to him. Wereman
relies on our decision in Statev.Blackbird (19801, 187 Mont. 270, 609
P.2d 708, to support his argument. III Blackbird, the defendant was
charged with bail jumping for failing to appear for trial in
connection with burglary, aggravated burglary, attempted burglary,
and sexual intercourse without consent charges. At trial, one of
Blackbird's defenses was that it was not his purpose to not appear
for trial. At the close of trial, the court issued a jury
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instruction which was, in substance, identical to the one at issue
here. We held that the instruction should not have been given
because it did not allow the jury to independently assess
Blackbird's mental state. Blackbird, 609 P.2d at 710. We also
concluded that giving the instruction was not harmless error.
However, for the reasons set forth in the previous section of
this opinion, we conclude that while this instruction should not
have been given, it was harmless in the context of this case.
Again, Wereman himself testified regarding his reason for not
appearing. He stated it was because the charges lacked merit and
would be dropped. He said nothing about lack of notice. It was
simply not an issue in th-is case. While Wereman could not have
been compelled to testify, he chose to waive his Fifth Amendment
right to remain silent (at least until cross-examination).
Therefore, his own admissions, and any reasonable inference from
those admissions, must be considered.
Therefore, we conclude that the jury instruction complained of
was harmless beyond a reasonable doubt and that it did not
contribute to the jury's verdict.
Accordingly, we affirm the decision of the District Court.
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we concur:
Justices
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Justice W. William Leaphart, dissenting.
I dissent from the Court's opinion on issue two. The District
Court instructed the jury that (I [nlotice to an attorney of a court
date is notice to the client and knowledge of the attorney is
knowledge of his client." In Blackbird, this Court analyzed a
virtually identical jury instruction, and held that it was
reversible error to so instruct the jury. I cannot join with the
majority, which recognizes that the instruction given in Blackbird
is "in substance, identical to the one at issue here" and that "the
instruction should not have been given," yet holds that it was
"harmless in the context of this case." As we held in Blackbird:
As a conclusive or mandatory presumption, the instruction
had the effect of relieving the State of its burden to
prove every element of the offense beyond a reasonable
doubt. The inclusion of the instruction obviated the
necessity for the jury to independently examine the
mental state or the intent or purpose of the defendant.
The giving of the instruction was, therefore, error.
Blackbird, 609 P.2d at 710. Section 45-7-308(l), MCA, sets forth
the offense of bail-jumping:
A person commits the offense of bail-jumping if, having
been set at liberty by court order, with or without
security, upon condition that he will subsequently appear
at a specified time and place, he purooselv fails without
lawful excuse to alsoear at that time and olace.
[Emphasis added.]
Clearly, to purposely fail to appear at a time and place, the
defendant must have notice of the time and place. Thus, notice was
an element to be proven, not, as the majority infers, a defense
that the defendant has to raise. The effect of the instruction was
to shift to Wereman the burden of proving lack of notice instead of
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keeping the burden on the prosecution, where the burden of proof
must remain as to every element of the offense. Sandstrom v.
Montana (1979), 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39. I find
it troubling that the majority recognizes that Blackbird prohibits
this type of conclusive presumption instruction, yet holds that the
giving of the instruction "was harmless in the context of this
case."
In Blackbird, we found that the giving of an identical
instruction was not harmless error even though the jurors "could
have inferred [defendant's mental state] from other items of
evidence introduced at trial, we cannot declare beyond a reasonable
doubt that all of the jurors formulated defendant's mental state
this way." Wereman testified that he did not appear because the
charges lacked merit and would be dropped. From this statement,
the majority infers that notice was not an issue. I disagree.
Whether Wereman raises the issue or not, notice remains an element
of the offense of bail-jumping. The instruction relieved the State
from its burden of proof on an element of the offense. Even though
Wereman said nothing about lack of notice, that does not relieve
the State from proving every element of the offense. As a result,
I would reverse the District Court on this issue.
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Justice Karla M. Gray joins in the foregoing dissent of Justice W.
William Leaphart.
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